2014-12-12

Unfiltered advert!

We ran an advert in Linux Voice magazine recently, which included the title text "Home::1 BROADBAND, F*CK FILTERING". It was meant to be a bit of a play on words both as "We don't want filtering", but also on the type of material that filtered by default by large ISPs. I am more than happy to be criticised for it being in poor taste, and I apologise for that. Thankfully most people did find it amusing.

However, to our surprise someone raised a formal complaint to the Advertising Standards Authority!

Even though a tad bad taste, we were a bit surprised by this. But if gets odder.

The complaint was that it was irresponsible as the readership included children?!

The complaint was submitted with a photograph of the advert. But what is extra strange is that it was not one taken by the person complaining, but was one taken by one of our customers who posted a link to the picture on an irc channel. That channel has quite small readership, and is almost entirely existing customers as well as people with a sense of humour and a place of definitely adult conversation at times.

We have no idea who it was that complained, though the ASA screwed up quite badly as they left the EXIF data in the photo. Had it been taken by the complainer, we would have been able to work out where and when it was taken very accurately. As it happens we traced it to the customer that took it, and we were able to confirm it was the same picture he posted in the irc channel.

The ASA clearly have no clue on handling personal information!

Another thing they have no clue on is copyright law. Obviously we are not lawyers, but they were emailing around, i.e. copying, a photograph of a magazine. The photograph was copyright of the photographer (our customer) who had not given permission for the complainer or the ASA to copy it. The subject of the photograph is a magazine, which is likely at least in part to be copyright of Linux Voice. And finally the advert that is the subject of the picture is our copyright.

Now, the usage in this case may possibly come under the "fair usage" exceptions in the copyright act, I am not sure, but when we pointed out the copyright issues to the ASA their reply was rather bizarre! They said that they were using the photo :-

Not for commercial purposes

Not disseminating it any further other than for our reference and ASA council

That the ad itself was "public domain" anyway

None of these are valid excuses for breaching copyright. If they were, then copying a CD (public domain) for a mate (not disseminating far) for free (non commercial) would be fine under copyright law. At no point did he suggest it was fair usage or that it was covered by some other legal loophole allowing it. It suggests ASA have no clue at all on copyright.

They also had some interesting points on confidentiality - they said the case was confidential. We asked on what legal basis that was the case (half expecting there to be some law on the matter) and they basically had nothing. No contract or agreement with us. No legal requirement. Their only suggestion was that if we published anything then they would not take any further comments from us in defence of the case, and that publishing could prejudice the case?! Anyway, that being their reasoning, there is no reason not to publish their ruling now.

I'd like to thank the guys from Linux Voice as they were helpful in addressing this. We think it is their first ever ASA complaint too.

Anyway, the good news is that the complaint was not upheld. Linux voice is not a children's magazine, surprise surprise! Of course, the whole thing is rather daft, as most of these sorts of cases are, even if upheld - by the time we got the complaint we had finished running the advert anyway!

I include the PDF here journalistically for criticism, comment and review.

The photographer doesn't have any claim to copyright, the camera was being used merely to reproduce an existing work. The fact it was published in a magazine isn't enough to grant copyright to the magazine, too, as the copyright for published editions is derived from its "typographical arrangement". The copyright remains yours.

Secondly, I think you're thinking of "fair dealing", not "fair usage". There are very few protections offered by fair dealing, but copying for criticism certainly is one of them. I agree that it seems the ASA don't know their copyright law, but this post is rather confused on it too.

Well, ordinarily a photographer has copyright in their work. You did not see the photograph, but it was, indeed, almost wholly the advert itself. If it had any wider context then there would definitely have been copyright in the photograph. I was not sure of the magazine.

It's amazing that rude word censorship still exists. You should use the old chestnut and make a geographically targeted advert. "F*ck filtering in Scunthorpe and then make a complaint yourself that children might see the word "cunt".

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